FORTY-SECOND CONGRESS. Sess. II Ch. 152. 1872. 91-96
CHAP. CLII (152) — An Act to promote the Development of the mining Resources of the
Untied States.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That all valuable
mineral deposits in lands belonging to the United States, both
surveyed and unsurveyed, are hereby declared to be free and open to exploration
and purchase, and the lands in which they are found to occupation and purchase,
by citizens of the United States and those who have declared their intention to
become such, under regulations prescribed by law,
and according to the local customs or rules of miners, in the several
mining-districts, so far as the same are applicable and not inconsistent with
the laws of the United States.
Sec.2. That mining-claims upon veins or lodes of
quarts or other rock in place bearing gold, silver, cinnabar, lead, tin,
copper, or other valuable deposits heretofore located, shall be governed as to
length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the
passage of this act, whether located by one or more persons, may equal, but no
exceed, one thousand five hundred feet in length along the vein or lode; but no
location of a mining-claim shall be made until the discovery
of the vein or lode within the limits of the claim located. No claim shall
exceed more than three hundred feet on each side of the Middle of the vein at
the surface, nor shall any claim be limited by any mining regulation to less
then twenty five feet on each side of the middle of the vein at the surface,
except where adverse rights existing at the passage of this act shall render
such limitation necessary. The end-lines of each claim shall be paralleled to
each other.
Sec.3. That the locators of all mining locations
heretofore made, or which shall hereafter be made, on any mineral vein, lode,
or ledge, situated on the public domain, their heirs and assigns, where no
adverse claim exists at the passage of this act, so long as they comply with the laws of the United States, and with State, territorial, and
local regulations not in conflict with said laws of the United States governing
their possessory title, shall have the exchange right of possession and
enjoyment of all the surface included within the lines of their locations, and
of all veins, lodes, and ledges throughout their entire depth, the top or apex
of which lies inside of such surface-lines extended
downward vertically, although such veins, lodes, or ledges may so far depart
from a perpendicular in their course downward as to extend the vertical
side-lines of said surface such planes will intersect such parts
of said veins or ledges: And provide further, That nothing in the section shall
authorize the locator or possessor of a vein or lode which extends in its
downward course beyond the vertical lines of his claim to enter the surface of
a claim owned or possessed by another.
Sec. 4. That where a tunnel is run for the development of a vein or lode, or
for discovery of mines, the owners of such tunnel shall have the right of
possession of all veins or lodes within three thousand feet from the face of
such tunnel on the line thereof, not previously known to exists, discovered in
such tunnel, to the same extent as if discovered from the surface; and
locations on the line of each tunnel of veins or lodes not appearing on the
surface, made by either parties after the commencement of the tunnel, and while
the same is being prosecuted with reasonable diligence,
shall be invalid: but prosecute the work on the tunnel for six months shall be
considered as an abandonment of the right to all undiscovered veins on the
lines of said tunnel.
Sec. 5. That the miners of each mining district
may make rules and regulations not in conflict with the laws of the United
States, or with the laws of the State or Territory in which the district is
situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim, subject to the following
requirements: The location must be distinctly marked on the ground so that the
boundaries can be readily traced. All records of the mining-claim hereafter
made shall contain the name of the locators, the date of the location, and such
description of the claim or claims located by reference to some natural object
or permanent monument as will identify the claim. On each claim located after
the passage of this act, and until a patent shall have been issued therefore,
not less than one hundred dollars' worth of labor shall be performed or
improvements made during each year. On all claims located prior to the passage
of this act, ten dollars worth of labor shall be performed or improvements made
each year for each one hundred feet in length along the vein until a patent
shall have been issued therefore: but where such claims are held in common such
expenditure may be made upon any one claim; and upon a failure to comply with
these conditions, the claim or mine upon which arch failure occurred shall be open to relocation in the same manner as if no location of the
same had ever been made: Provided, That the original locators, their heirs,
assigns, or legal representative, have resumed work upon the claim after such
failure and before such location. Upon the failure of any one
of several co-owners to contribute his proportion of the expenditures required
by this act, the co-owners who have performed the labor or made the
improvements may, at the expiration of the year, give such delinquent co-owner personal
notice in writing or notice of publication in the
news-paper published nearest the claim, for at least once a week for ninety
days, and if the expiration of ninety days after such notice in writing or by
publication such delinquent should fail or refuse to contribute his proportion
to comply with this act, his interest in the claim shall
become the property of the co-owners who have made the required expenditures.
SEC. 6. That a patent for any land claimed and
located for deposits may be obtained in the following manner: Any person,
association or corporation authorized to locate a claim
under this act, having claimed, and located a piece of land for such purpose,
who has, or have, complied with the terms of this act, may file
in the proper land-office an application for a patent, under oath, showing such
compliance, together with a plat and field-notes of the claim or claims in
common, made by or under the direction of the United States surveyor-general,
showing accurately the boundaries of the claim or claims, which shall be
distinctly marked by monuments on the ground, and shall post a copy of such
plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat
previous to the filing of the application for a patent, and shall file an
affidavit of at least two persons that such notice has been duly posted as
aforesaid, and shall file a copy of said notice in such land-office, and shall
thereupon be entitled to a patent for said land, in the manner following: The
register of the land-office, upon the filing of such application,
plat-field-notes, notices, and affidavits, shall publish a notice that such
application has been made, for the period of sixty days, in a news-paper to be
by him designated as published nearest to said claim; and he shall also post
such notice in his office for the same period. The claimant at the time of
filing this application, or at any time thereafter, within the sixty days of
publication, shall file with the register a certificate of
the United States surveyor-general that five hundred dollars' worth of labor
has been expended or improvements made upon the claim by himself or grantors;
that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and
furnish an accurate description, to be incorporated in the paten. At the
expiration of the sixty days of publication the claimant shall file his
affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during said period of publication.
If no adverse claim shall have been filed with the register and the receiver of
the proper land-office at the expiration of the sixty days of publication, it
shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per
acre, and that no adverse claim exists; and thereafter no objection from third
parties to the issuance of a patent shall be heard, except it be shown that the
applicant has failed to comply with this act.
Sec. 7. That where an adverse claim shall be filed
during the period of publication, it shall be upon oath of the person or
persons making the same, and shall show the nature, boundaries, and extent of
such adverse claim, and all proceedings, except the publication of notice and
making and filing of the affidavit thereof, shall be stayed until the
controversy shall have been settled or decided by a court of competent
jurisdiction, or the adverse claim waived. It shall be the duty of the adverse
claimant, within thirty days after filing his claim, to
commence proceedings in a court of competent jurisdiction, to determine the
question of the right of possession, and prosecute the same with reasonable
diligence to final judgment; and a failure so to do shall be waiver of his
adverse claim. After such judgment shall have been
rendered, the party entitled to the possession of the claim, or any portion
thereof, may, without giving further notice, file a certified copy of the
judgment-roll with the register of the land-office, together with the
certificate of the surveyor-general that the requisite
amount of labor has been expended, or improvements made thereon, and the
description required in other cases, and shall pay to the receiver five dollars
per acre for his claim, together the proper fees, whereupon the whole
proceedings and the judgment-roll shall be certified
by the register to the commissioner of the general land office, and a patent
shall issue thereupon for the claim, or such portion thereof as the applicant
shall appear, from the decision of the court, to rightly posses. If it shall
appear from the decision of the court that several parties are entitled to
separate and different portions of the claim, each party may pay for his
portion of the claim, with proper fees, and file the certificate and
description by the surveyor-general, whereupon the register shall certify the
proceedings and judgment-roll to the commissioner of the
general land office, as preceding case, and patents shall issue to the several
parties according to their respective rights. Proof of citizenship under this
act, or the acts of July twenty-sixth, eighteen hundred and sixty six, and July
ninth , eighteen hundred and seventy, in the case of an individual, may consist
of his own affidavit thereof, and in case of an association of persons
unincorporated, of the affidavit of their authorized agent, made on his own
knowledge or up information and belief, and in case of a corporation organized
under the laws of the United States, or of any State or Territory of the Untied
States, by the filing of a certified copy of their charter or certificate of
incorporation; and nothing herein contained shall be construed to prevent the
alienation of the title conveyed by a patent for a mining-claim to any person
whatsoever.
Sec. 8. That the description of vein or lode claims, upon surveyed lands,
shall designate the location of the claim with reference to the lines of the
public surveys, but need not conform therewith; but where a patent shall be
issued as aforesaid for claims upon unsurveyed lands, the
surveyor- general, in extending the surveys, shall adjust the same to the
boundaries of such patented claim, according to the plat or description thereof,
but so as in no case to interfere with or change the location of any such
patented claim.
Sec. 9. That sections one,
two, three, four, and six of an act entitled "An act granting the right of
way to ditch and canal owners over the public lands, and for other
purposes," approved July twenty-sixth, eighteen hundred and sixty-six, are
hereby repealed, but such repeal shall not affect existing rights. Applications
for patents for mining-claims now pending may be prosecuted to a final decision
in the general land office; but in such cases where adverse rights are not
affected thereby, patents may issue in pursuance of the provisions of this act; and all patents for mining-claims heretofore issued under the act
of July twenty-sixth, eighteen hundred and sixty-six, shall convey all the
rights and privileges conferred by this act where no adverse rights exist at
the time of the passage of this act.
Sec. 10. That the act entitled "An act to amend
an act granting the right of way to ditch and canal owners over the public
lands, and for other purposes," approved July ninth, eighteen hundred and
seventy, shall be and remain in full force, except as to the proceedings to
obtain a patient, which shall be similar to the proceedings prescribed by
sections six and seven of this act for obtaining patents to vein or lode
claims; but where said placer-claims shall be upon surveyed lands, and conform
to legal subdivisions, no further survey or plat shall be required, and all
placer mining-claims hereafter located shall conform as near as practicable
with the United States system of public land surveys and the rectangular
subdivisions of such surveys, and no such location shall include more than
twenty acres for such individual claimant, but where placer-claims cannot be
conformed to legal subdivisions, survey and plat shall be made as on unsurveyed
lands: Provided, That proceedings now pending may be prosecuted to their final
determination under the existing laws; but the provisions
of this act, when not in conflict with existing laws, shall apply to such
cases. And provided also, That where by the segregation of mineral land in any
legal subdivision a quantity of agricultural land less than forty acres
remains, said fractional portion of agricultural land
may be entered by any party qualified by law, for homestead or pre-emption
purposes.
Sec. 11. That where the same person, association, or
corporation is in possession of a placer-claim, and also a vein or lode
included within the boundaries thereof, application shall be made for a patent
for the placer-claim, with statement that it includes such vein or lode, and in such case (subject to the provisions of this act entitled
"An act to amend an act granting the right of way to ditch and canal
owners over the public lands, and for other purposes." approved July ninth, eighteen hundred and seventy) a patent shall issue
for the placer-claim, including such vein or lode, upon the payment of five
dollars per acre such vein or lode claim, and twenty-five feet of surface on each side thereof. The reminder of the placer-claim, or any
placer-claim not embracing any vein or lode claim, shall be paid for at the
rate of two dollars and fifty cents per acre, together with all costs of
proceedings; and where a vein or lode, such as is described in the second section of this act, is known to exist within
the boundaries of a placer-claim, an application for a patent for such
placer-claim which does not include an application for the vein or lode claim
shall be construed as a conclusive declaration that the claimant of the placer-claim has no right of possession of the vein or
lode claim; but where the existence of a vein or lode in a placer-claim is not
known, a patent for the placer-claim shall convey all valuable mineral and
other deposits within the boundaries thereof.
Sec. 12. That the surveyor-general of the United
States may appoint in each land district containing mineral lands as many
competent surveyors as shall for appointment to survey mining-claims. The
expenses of the survey of vein or lode claims, and the survey and subdivision of placer-claims into quantities than one hundred and sixty
acres, together with the cost of publication of notice, shall be paid by the
applicants, and they shall be at liberty to obtain the same at the most reasonable
rates, and they shall also be at liberty to employ any United
States deputy survey to make the survey. The commissioner of the general land
office shall also have power to establish the maximum charges for surveys and
publication of notices under this act; and, in case of excessive charges for
publication, he may designate any newspaper published in a
land district where mines are situated for the publication of mining-notice in
such district, and fix the rates to be charged by such paper; and, and to the
end that the commissioner may be fully informed on the subject, each applicant
shall file with the register a sworn statement of all charges and fees paid by
said applicant for publication and surveys, together with all fees and money
paid the register and the receiver of the land-office, which statement shall be
transmitted, with the other papers in the case, to the commissioner of the
general land office. The fees of the register and the receiver shall be five
dollars each for filing and acting upon each application for patent or adverse
claim filed, and they shall be allowed the amount fixed by law for reducing
testimony to writing, when done in the land-office, such fees and allowances to
be paid by the respective parties; and no other fees shall be charged by them
in such cases. Nothing in this act shall be constructed to charge or affect the
rights of either party in regard to any property in controversy
at the time of the passage of this act, or of the act entitled "An act
granting the right of way to ditch and canal owners over the public lands, and
for other purpose," approved July twenty-sixth, eighteen hundred and
sixty, nor shall this act affect any right acquired under
said act; and nothing in this act shall be constructed to repeal, impair, or in
any way affect the provisions of the act entitled "An act granting to A.
Sutro the right of way, and other privileges to aid in the construction of a
draining and exploring tunnel to the Comstock lode, in the
State of Nevada," approved July twenty-fifth, eighteen hundred and
sixty-six.
Sec. 13. That all affidavits required to be to be
made under this act, or the act of which it is amendatory, may be verified
before any officer authorized to administer oaths within the land-district
where the claims may be situated, and all testimony and proofs may be taken any such officer, and, when duly certified by the officer taking the
same, shall have the same force and effect as if taken before the register and
receiver of the land-office. In cases of contest as to the mineral or
agricultural character of land, the testimony and proofs may be taken as herein
provided on personal notice of at least ten days to the
opposing party; or if said party cannot be found, then by publication of at
least once a week for thirty days in a newspaper, to be designated by the
register of the land-office as published nearest to the location of
such land; and the register shall require proof that such notice has been
given.
Sec. 14. That where two or more veins intersect or cross each other, priority
of title shall govern, and such prior location shall be entitled to all ore or
mineral contained within the space of intersection : Provided, however, That
the subsequent location shall have the right of way through said space of intersection
for the purposes of the convenient working of the said mine : And provided
also, That where two or more veins unite, the oldest or prior location shall
take the vein below the point of union, including all the space of
intersection.
Sec. 15. That where non-mineral land not
contiguous to the vein or lode is used or occupied by the proprietor of such
vein or lode for mining or milling purposes, such non-adjacent surface ground
may be embraced and included in an application for a patent for such vein or lode,
and the same may be patented therewith, subject to the same preliminary
requirements as to survey and notice as are applicable under this act to veins
or lodes : Provided, That no location hereafter made of such non-adjacent land
shall exceed five acres, and payment for the same must be made at
the same rate as fixed by this act for the superficies of the lode. The owner
of a quartz-mill or reduction-works, not owning a mine in connection
therewith, may also receive a patent for his mill-site, as provided in this
section.
Sec. 16. That all acts and parts of acts
inconsistent herewith are hereby repealed: Provided, That nothing contained in
this act shall be construed to impair, in any way, rights or interests in
mining property acquired under existing laws.
Approved, May 10, 1872
FORTY-SECOND CONGRESS. Sess. II Ch. 152. 1872. 91-96